Citation Nr: 1146451
Decision Date: 12/20/11 Archive Date: 12/29/11
DOCKET NO. 05-32 194 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUES
1. Entitlement to an increased rating for multiple sclerosis (MS) with neurogenic bladder, currently evaluated as 30 percent disabling.
2. Entitlement to an initial evaluation in excess of 20 percent for sensory neuropathy of the left (dominant) upper extremity.
3. Entitlement to an initial evaluation in excess of 10 percent for sensory neuropathy of the left lower extremity.
4. Entitlement to an initial compensable evaluation for optic neuritis.
5. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America, Inc.
ATTORNEY FOR THE BOARD
J. Barone, Counsel
INTRODUCTION
Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2010).
The Veteran had active service from November 1965 to December 1968.
This matter came before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
The appeal was remanded in February 2008 and October 2010. While the appeal was most recently in remand status, the RO issued a rating decision in December 2010. In pertinent part, that rating decision granted SMC based on housebound status and denied benefits based on the need for the aid and attendance of another person.
FINDINGS OF FACT
1. MS with neurogenic bladder is manifested by urinary retention requiring continuous catheterization.
2. Sensory neuropathy of the left (dominant) upper extremity more closely approximates severe incomplete paralysis of all radicular groups.
3. Sensory neuropathy of the left lower extremity more closely approximates severe incomplete paralysis of the external popliteal nerve
4. There is no evidence of visual impairment related to optic neuritis.
5. The Veteran's service-connected disabilities render him unable to care for daily personal needs without regular assistance from others or to protect himself from the hazards and dangers of his daily environment.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 30 percent for MS with neurogenic bladder have not been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.27, 4.115a, 4.115b, Diagnostic Code 7542 (2011).
2. The criteria for a 70 percent for sensory neuropathy of the left (dominant) upper extremity have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10; 4.124a, Diagnostic Code 8513 (2011).
3. The criteria for a 30 percent evaluation for sensory neuropathy of the left lower extremity have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10; 4.124a, Diagnostic Code 8521 (2011).
4. The criteria for a compensable evaluation for optic neuritis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R.
§§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.27; 4.84a, Diagnostic Code 6026 (prior to December 10, 2008); and 4.79, Diagnostic Code 6026 (2011).
5. The requirements for special monthly compensation based on the need for the regular aid and attendance of another person have been met. 38 U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. § 3.352 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011).
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).
On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486.
A letter dated in March 2005 discussed the evidence necessary to support claims of entitlement to special monthly compensation and increased ratings. The Veteran was invited to submit or identify evidence. The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional relevant evidence.
In December 2004 the Veteran was advised of the evidence that might support his claims.
In August 2005 the Veteran was advised of the evidence necessary to support a claim of entitlement to service connection. The evidence of record was listed and he was told how VA would assist him.
In April 2006 the Veteran was advised of the manner in which VA determines disability ratings and effective dates.
Letters dated in November 2008, January 2009, and February 2009 advised the Veteran of the status of his claim.
In November 2010 the Veteran was advised that his appeal had been remanded for additional development. The status of his claim was discussed. A similar letter was sent in December 2010.
The content of the notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim.
With respect to VA's duty to assist, the Board notes that identified records have been obtained. The Veteran has been afforded the opportunity to testify before the undersigned; however, such hearing was cancelled by the Veteran. VA examinations have been carried out. The Board finds that the examinations were adequate in that the examiners reviewed the record, interviewed the Veteran, and performed appropriate examinations prior to providing their conclusions. The Veteran has not identified any additional evidence or information which could be obtained to substantiate his claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations.
For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal.
Factual Background
The instant appeal arises from the Veteran's May 2003 claim, in which he requested a higher evaluation for his service-connected MS. He noted that he had side effects from his medications, as well as fatigue, spasticity, and pain from his MS. He indicated that he catheterized himself six to nine times per day due to his neurogenic bladder, and that he regularly had bladder infections. He stated that he was unable to perform chores at his condominium and that his fiancée had lost many hours from work because she helped to take care of him. He noted that he used crutches many days, or could not stand at all.
A March 2003 VA neurology note indicates that the Veteran experienced problems with balance, weakness, and spasticity. The provider also noted that the Veteran self-catheterized due to his neurogenic bladder. Objectively, there was loss of pain sensation in the Veteran's hands, left forearm, left foot, and lateral side of the left leg. Strength was 4/5 in the left upper and lower extremities. Optic neuritis was also noted.
The Veteran was afforded a VA aid and attendance or housebound examination in July 2004. His history was reviewed. With respect to his bronchiectasis, the Veteran related that he experienced 10 to 15 infections per year, and that when he had one, he was bedridden. Regarding his MS, he reported multiple exacerbations throughout the years, involving numbness and tingling of the left lower extremity, lightheadedness, disequilibrium, and occasional falling. He also reported episodes of optic neuritis and increased painful spasticity. He noted that he had experienced persistent blurred vision over the previous three months. The examiner noted that the Veteran had been diagnosed with neurogenic bladder in approximately 1990. The Veteran reported chronic weakness of the left arm. The examiner noted that the Veteran used a pistol grip cane regularly and also used a wheelchair during severe exacerbations. He also noted that the Veteran self-catheterized eight to ten times per day. The veteran reported difficulty getting out of bed and morning spasticity that caused him to require assistance. He indicated that he had difficulty preparing meals and cleaning the house, as well as with shaving. On physical examination, left hand grip strength was 3/5 compared to 5/5 on the right. There was decreased strength of the left lower extremity but no atrophy. Sensation was decreased to pin prick and fine touch in the left upper extremity and there was a notable tremor. The examiner indicated that the Veteran did not need another person to protect him from the environment, but that according to his history he fell often. He noted that the Veteran was not restricted to his home or immediate vicinity.
In a November 2004 statement, the Veteran's wife noted that the Veteran experienced confusion due to his posttraumatic stress disorder (PTSD). She indicated that she helped him out of bed in the morning and most times when he catheterized himself. She stated that the MS caused hand and arm tremors throughout the day, and that she often had to give him his daily medication injection. She noted that the Veteran was unable to effectively perform daily tasks such as unloading the dishwasher, writing clearly, and cleaning house. She indicated that the Veteran lost his balance regularly and that she assisted him with bathing due to this. She noted that the MS, PTSD, and respiratory disability caused the Veteran to be bedridden at least half of the time, unable to care for himself.
A July 2005 VA treatment record notes some conflict in whether the Veteran's reported visual symptoms were related to optic neuritis. The report of a brain MRI notes that there were changes that were more consistent with small vessel ischemic change rather than a demyelinating process. A subsequent ophthalmology notes indicates that the Veteran's visual complaints were more likely related to cataracts
A VA neurology note dated in October 2005 notes that the Veteran had an MS exacerbation involving progressive weakness. The provider noted left hemiparesis and 4+/5 power with some give away weakness.
On VA genitourinary examination in November 2005, the Veteran's history was reviewed. He reported fatigue, weakness, and neurogenic bladder. He complained of spasms in his left arm and hand. He was noted to walk with a cane. The examiner observed that the Veteran utilized catheterization eight to ten times per day due to urinary retention, and the Veteran reported that he had six to eight urinary tract infections per year. Physical examination revealed some weakness on the left, with strength 4/5 compared to 5/5 on the right. There was no evidence of spasm at the time of the examination. There was no evidence of urinary leakage. The examiner concluded that the weakness and sensory neuropathy in the left extremities was likely secondary to the MS.
On VA eye examination in November 2005, the Veteran's history was reviewed. He reported that he noticed decreased visual acuity and lightening streaks, as well as intermittent eye pain. Following examination, the examiner indicated that the Veteran had multiple sclerosis with a medical history of optic neuritis bilaterally. He indicated that the veteran had reduced visual acuity in the right eye that was likely the result of mild cataracts. He stated that he was unable to identify any significant optic nerve damage or visual impairment from previous episodes of optic neuritis, though it was highly probable that the Veteran had experienced optic neuritis in one or both eyes in the past.
In January 2006 a VA ophthalmologist stated that the Veteran's visual complaints were more likely related to cataracts.
In February 2006 the Veteran stated that he self-catheterized eight or nine times per day and that his urologist prescribed antibiotics so that he could self medicate when he had an infection. He noted that his MS caused severe fatigue and that he used a cane to ambulate. He also noted that he sometimes used a wheelchair or crutches, and that many days he was unable to get out of bed at all. He indicated that on a bad day, he stumbled over furniture in his home and constantly lost his balance.
An October 2006 VA social work note indicates that the Veteran was ambulatory, but required the use of a walker due to increased falls. The author noted that the Veteran no longer drove and was a fall risk. She stated that it might be time for him to use a wheelchair for longer distances.
An October 2006 VA neurology note indicates that the Veteran had noted increased incoordination and had fallen recently. He reported fatigue.
In November 2006 the Veteran was issued a four-wheeled walker.
In July 2007 the veteran was seen for an eye examination. The provider discussed the Veteran's complaints of transient pain in his right eye, and noted that he had been seen by a neurologist and that no etiology was found. The impression was glaucoma.
On VA eye examination in December 2008, the Veteran's history was reviewed. The examiner noted the Veteran's history of MS and related optic neuritis. Examination revealed no evidence of optic nerve head edema or atrophy. The impression indicated MS without evidence of optic neuritis.
On VA neurological examination in February 2009, the examiner noted that motor strength was 4/5 on the left except for left hand grip and left wrist flexion and extension, which was 3/5. There was mild left lower extremity flaccity. Decreased sensation of the left lower and upper extremities was noted. Position sense, mental status, and cranial nerves were normal. The Veteran's gait was ataxic and antalgic. Heel-knee-shin test was impaired. Tandem walking test was not performed secondary to imbalance. The examiner concluded that there were significant effects of the MS on the Veteran's occupation due to memory problems, decreased concentration, decreased mobility, decreased manual dexterity, vision difficulty, lack of stamina, weakness or fatigue, decreased strength of the lower and upper extremity, urinary incontinence, and pain. He noted that the Veteran could not perform chores, shopping, or sports; and that the effect on exercise and recreation was severe. He indicated that the effect on traveling, bathing, dressing, toileting, and grooming was moderate.
On VA genitourinary examination in February 2009, the Veteran's history was reviewed. He noted that he self-catheterized eight times per day due to his inability to void. The examiner noted that there was a history of recurrent urinary tract infections but no history of hospitalization. He indicated that the total duration of treatment for urinary tract infections by medication was one to three months in the previous 12 months. He noted that while catheterization was necessary constantly, there was no need for dilation. He indicated that there was no history of hydronephrosis. The bladder, penis, and testicles were normal. The diagnosis was neurogenic bladder, and the examiner concluded that there were severe effects on toileting.
An aid and attendance examination was also carried out in February 2009. By way of history, the examiner noted that the Veteran was capable of traveling beyond his domicile, and that he was not bedridden. He was accompanied to the examination by a family member. The Veteran reported that his wife helped him out of bed, and helped him wash and dress. He indicated that she prepared his meals, but that he was able to eat by himself. He noted that she helped him with toileting. The examiner noted that the Veteran used a four-wheeled walker. The Veteran reported that he experienced dizziness once or more daily and that he had mild occasional memory loss. He indicated that he fell frequently. On physical examination his gait was ataxic and antalgic. He was noted to be able to walk without assistance only within his home. He stated that he left home only accompanied by his wife. The examiner noted that the best corrected vision was not 5/200 or worse in both eyes. With respect to upper extremity strength and coordination, the examiner indicated that the Veteran had marked difficulty with self feeding, ability to self bath, and toileting. He noted that he had some difficulty with his ability to dress and undress and with his ability to self groom. He also noted that the Veteran had muscle weakness and lack of coordination of the lower extremities, and that he was unable to stand or walk without a walker secondary to spasticity, discoordination, and weakness.
Statements by the Veteran's sisters-in-law, received in February 2009, attest to his inability to care for himself. They noted that he required frequent rest and that he fell quite often.
In March 2009 the Veteran was evaluated for a power wheelchair. His medical history was reviewed. With respect to the Veteran's current functional status, the examiner noted that he was independent in basic and instrumental activities of daily living and was able to independently transfer. He also noted that the Veteran had a manual wheelchair. Manual muscle testing revealed 2+/5 strength in the left upper extremity and 2/5 strength in the left lower extremity. There was moderate spasticity of the left upper and lower extremities. Sensory examination revealed decreased pinprick sensation below the knees; the upper extremities were normal. On functional examination, the Veteran transferred from sit to stand to examination table without assistance, and demonstrated less than fair muscle strength on manual muscle testing. The examiner concluded that the Veteran did not have functioning of the upper or lower extremities to propel a lightweight manual wheelchair for short distances, or standing balance to ambulate with a four-wheeled walker. The assessment noted that the Veteran ambulated with an unsteady gait in short distances with a four-wheeled walker. The examiner again noted spasticity of the left upper and lower extremities secondary to MS. He recommended a motorized wheelchair for mobility.
A power wheelchair was issued in April 2009.
Private records reflect that in November 2009 the Veteran underwent image-guided microscopic assisted suboccipital craniectomy for obliteration of a tentorial dural AV fistula. The discharge summary notes that he had undergone various attempts at embolization, most recently in March 2009. Following the initial surgery, the Veteran underwent insertion of a right frontal ventriculostomy. Upon discharge, he was transferred to a rehabilitation facility. On discharge, the attending physician noted that rehabilitation was medically necessary due to the Veteran's multiple medical problems combined with continuing medical care and intravenous antibiotics following his surgery.
A VA record notes that the Veteran was scheduled for various examinations in November 2010. An associated memorandum notes that the Veteran's representative had contacted VA to advise that the Veteran would not attend his scheduled examinations due to his poor health due to residuals of lung cancer.
A January 2011 VA treatment record notes that the Veteran had continued risk for falls. Various preventions and interventions were listed.
An additional VA aid and attendance or housebound examination was carried out in January 2011. The examiner noted that the Veteran was not permanently bedridden or currently hospitalized. He indicated that the Veteran could travel beyond his current domicile. He noted that the Veteran was accompanied by a family member and was transported via wheelchair transport. In describing his typical daily activities, the Veteran reported that he required assistance setting up his nebulizer treatments and that his wife prepared meals. He indicated that he watched television and did stock trading on the computer. He also reported that he read the newspaper. He stated that he could walk short distances with a walker. The examiner noted that the Veteran had left spastic hemiplegia and that he occasionally fell. He noted that the Veteran was unable to self feed. Physical examination revealed stooped posture and an ataxic gait. The examiner noted that the Veteran could walk without assistance of another person only within the home. He indicated that the Veteran was not restricted in his ability to leave home. He noted that the Veteran did not have best corrected vision of 5/200 or worse in both eyes. He indicated that the upper extremities had mild to moderate impairment, and that the Veteran had marked difficulty with self feeding, dressing and undressing, self bathing, and toileting ability. He noted that the Veteran had some difficulty with self grooming. He indicated that the Veteran had muscle weakness, atrophy, and lack of coordination in the lower extremities. He noted that the Veteran was unable to stand or ambulate normally secondary to weakness, spasticity, and discoordination. In March 2011 the examiner provided an addendum wherein he stated that the Veteran required assistance at home with regards to several functions in his life; he stated that the Veteran did not require the assistance of a medical professional.
A March 2011 VA urology record notes that the Veteran continued to catheterize seven times per day.
An additional March 2011 record notes that the Veteran's wife requested that he be afforded home based care.
An April 2011 VA treatment record notes that following eye examination, there was no evidence of active optic neuritis.
Analysis
Ratings
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10.
The Board observes that in cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran appealed the initial evaluations assigned to his sensory neuropathy; the Board has considered staged ratings but has determined that the disability has not significantly changed and that uniform ratings are appropriate.
Where entitlement to compensation has already been established, as with the evaluation of the Veteran's MS with neurogenic bladder, and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2 (2011); see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service- connected disability exhibits symptoms that would warrant different ratings. In this case the Board has concluded that the disability has not significantly changed and that a uniform evaluation is warranted.
The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.
Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.
MS with Neurogenic Bladder
38 C.F.R. § 4.115b, Diagnostic Code 7542 provides that a neurogenic bladder is rated as voiding dysfunction. The criteria for voiding dysfunction states that the disability should be rated as urine leakage, frequency, or obstructed voiding.
In this regard, continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the wearing of absorbent materials which must be changed two to four times per day warrants a 40 percent rating; and the use of an appliance or wearing of absorbent materials which must be changed more than four times per day warrants a 60 percent rating. 38 C.F.R. § 4.115a.
Urinary frequency with a daytime voiding interval between two and three hours or awakening to void two times per night warrants a 10 percent rating; with a daytime voiding interval between one and two hours or awakening to void three to four times per night warrants a 20 percent rating; and with daytime voiding interval less than one hour or awakening to void five or more times per night warrants a 40 percent rating. Id.
Obstructive voiding symptomatology with or without stricture disease requiring dilatation one to two times per year warrants a non-compensable evaluation. Marked obstructive voiding symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or a combination of post-void residuals greater than 150 cc, uroflowmetry with a marked diminished peak flow rate (less than 10 cc/sec), recurrent urinary tract infections secondary to obstruction, or stricture disease requiring periodic dilatation every two to three months, warrants a 10 percent rating. Urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. Id.
Urinary tract infections requiring long-term drug therapy, one to two hospitalizations per year and/or requiring intermittent intensive management warrants a 10 percent rating. Where the evidence shows recurrent symptomatic infection requiring drainage and frequent hospitalization (greater than two times per year) and/or requiring continuous intensive management warrants a 30 percent rating. Id.
As to an increased rating under the obstructive voiding and/or urinary tract infections criteria, the Board notes that the 30 percent rating already assigned his disability equals the maximum rating possible under these rating criteria. See 38 C.F.R. § 4.115a.
The Board has also considered whether a higher evaluation is warranted pursuant to other types of voiding dysfunction. However, the record does not demonstrate continual urine leakage requiring the use of an appliance or the wearing of absorbent materials, or urinary frequency with daytime interval less than one hour or awakening to void five or more times per night. Rather, the evidence shows that the Veteran is unable to void. There is no indication that he requires absorbent materials or that he has the frequency required for a higher evaluation.
The Board also observes that the Veteran's representative has argued that his self-catheterization amounts to use of an appliance, and that as such, he should be assigned a higher evaluation pursuant to the rating criteria for urinary leakage or incontinence. While the genitourinary rating criteria do not define the term "appliance," the Board has reviewed the Federal Register (FR) discussing the adoption of the new DC 7542 for neurogenic bladder, which became effective from February 17, 1994, and is the controlling diagnostic code in this case. In that discussion, the intent defines catheters in the context of urinary incontinence and envisions incontinence as more disabling than urinary obstruction. 59 FR 2527, Jan. 18, 1994. The Board notes the incongruity that continual catheterization for "urinary obstruction" warrants only a 30 percent rating while intermittent catheterization for "urinary leakage" rates a much higher rating. Nonetheless, the rating criteria clearly envision urinary incontinence as more disabling than urinary obstruction: "For some persons, wearing absorbent materials may be inappropriate; such people require the use of a catheter or some other means to compensate for loss of control." Id.
Here, the manifestations of the Veteran's neurogenic bladder consist of an inability to void, requiring the use of self-catheterization and intermittent bladder infections. The rating criteria for urinary retention and urinary tract infection fully contemplate the Veteran's disability picture. As noted, the maximum evaluation under those criteria is 30 percent. As the criteria fully encompass the Veteran's symptomatology, the Board finds that a higher evaluation is not warranted.
Sensory Neuropathy
Neurological conditions are evaluated pursuant to the criteria found at 38 C.F.R. § 4.124a. A note to this section states that the term "incomplete paralysis," where involving peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. Also, when peripheral nerve involvement is wholly sensory, the rating should be for the mild or, at most, the moderate degree.
The words "mild," "moderate," and "severe" are not defined in the above rating criteria. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6.
Left Upper Extremity
The Veteran's left upper extremity sensory neuropathy is currently evaluated as 20 percent disabling pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8513, for mild incomplete paralysis on the major side. Moderate incomplete paralysis is rated as 40 percent disabling on the major side; and, severe incomplete paralysis is rated 70 percent disabling on the major side. Complete paralysis of all radicular groups is rated as 90 percent disabling on the major side.
Upon review of the record, the Board has determined that this disability is most appropriately rated as 70 percent disabling for severe incomplete paralysis. In that regard, the Board notes that for the period of this appeal, the Veteran's MS has been shown to cause hand and arm tremors resulting in difficulty in ambulation with a wheeled walker, as well as self care activities. The Veteran has reported chronic weakness of his left arm, and objective testing has revealed decreased strength in that arm. Objectively, strength has been measured as 2+/5 and 3/5, and moderate spasticity of the left upper extremity has been recorded. More recently, the Veteran was noted to be unable to self feed. Overall, the Board finds that the left upper extremity disability more nearly approximates the criteria for severe incomplete paralysis.
However, the Board finds that complete paralysis of the left upper extremity is not shown. In that regard, there is no evidence of all shoulder and elbow movements lost or severely affected; adduction, abduction, and rotation of the arm, flexion of the elbow, and extension of the wrist lost or severely affected; and all intrinsic muscles of the hand and some or all of flexors of the wrist and fingers are paralyzed. In sum, the Board concludes that the most appropriate evaluation for this disability is for severe incomplete paralysis of the left upper extremity.
Left Lower Extremity
The Veteran is in receipt of a 10 percent evaluation for sensory neuropathy of the left lower extremity, which contemplates mild incomplete paralysis of the external popliteal nerve (common peroneal), pursuant to Diagnostic Code 8521. Moderate incomplete paralysis is evaluated as 20 percent disabling, severe incomplete paralysis is evaluated as 30 percent disabling, and complete paralysis of the external popliteal nerve is evaluated as 40 percent disabling.
Upon close review of the record, the Board finds that the Veteran's left lower extremity disability more closely approximates the criteria for a 30 percent evaluation for severe incomplete paralysis. Here, the record reflects that as early as 2003, the Veteran experienced problems with balance, weakness, and spasticity. Strength has been reduced. Throughout the appeal period, the Veteran has been assessed as a fall risk, the danger of which has increased over the years. Left hemiparesis with give away weakness is also documented in the record. More recently, the Veteran was issued a motorized wheelchair due to his inability to propel a manual wheelchair, and his tendency to fall when attempting to ambulate with a walker. Overall, the Board has concluded that the record demonstrates disability that is best contemplated by the criteria for severe incomplete paralysis under Diagnostic Code 8521.
A higher evaluation of 40 percent for complete paralysis is not, however, warranted. In that regard, there is no evidence demonstrating foot drop and slight drop of the first phalanges of all toes, lost dorsiflexion of the foot, lost extension of the proximal phalanges of the toes, lost abduction of the foot, weakened adduction, and anesthesia covering the entire dorsum of the foot and toes. As such, the Board has determined that this disability is most appropriately evaluated as 30 percent disabling for severe incomplete paralysis of the left lower extremity.
Optic Neuritis
Effective December 10, 2008, VA revised the schedular rating criteria for the evaluation of eye disorders. See 73 Fed. Reg. 66,543-66,554 (Nov. 10, 2008) (codified at 38 C.F.R. § 4.79); see also corrections at 74 Fed. Reg. 7,648 (Feb. 19, 2009). However, the criteria for the evaluation of optic neuritis remained unchanged. In that regard, 38 C.F.R. § 4.84a, Diagnostic Code 6026 for optic neuritis directs that the underlying disease be rated and combined with the evaluation for impairment of visual acuity or field loss.
In this case, the Board has determined that a compensable evaluation for optic neuritis is not warranted. In that regard, the evidence shows that for the appellate period, there has been no demonstration of active optic neuritis, and no indication of residuals of such. As noted by VA providers, the Veteran's visual complaints are more likely related to cataracts. VA examiners and treatment providers alike have concluded that there are no signs of active optic neuritis. In the absence of pathology related to optic neuritis, the Board must conclude that a compensable evaluation is not warranted.
Extraschedular Consideration
The potential application of various provisions of Title 38 of the Code of Federal Regulations has also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.
With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected neurogenic bladder or sensory neuropathy. The medical evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, as discussed in detail above, the symptomatology of the Veteran's disability is specifically contemplated under the appropriate ratings criteria. Thus, the Board determines that the schedular rating criteria adequately contemplate the Veteran's symptomatology, and that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet.App. 218, 227 (1995).
Aid and Attendance
Compensation at the aid and attendance rate is payable when a Veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l) (West 2002).
Determinations as to the need for aid and attendance must be based on the actual requirement of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of the claimant to dress or undress herself, or to keep herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which, by reason of the particular disability, cannot be done without aid; inability of the claimant to feed herself through loss of coordination of the upper extremities, or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from the hazards or dangers inherent in her daily environment. "Bedridden" will be a proper basis for the determination, and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions which the claimant is unable to perform should be considered in connection with her condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a) (2009).
Review of the record discloses that the Veteran is in receipt of service connection for lung cancer, evaluated as 100 percent disabling; PTSD, evaluated as 70 percent disabling; multiple sclerosis with neurogenic bladder, evaluated as 30 percent disabling, sensory neuropathy of the left (dominant) upper extremity, evaluated as 70 percent disabling; sensory neuropathy of the left lower extremity, evaluated as 40 percent disabling, a shell fragment wound of the left leg, evaluated as 10 percent disabling; and other noncompensable disabilities.
Upon careful review of the record, the Board concludes that special monthly compensation based on the need for aid and attendance is warranted. In this regard, the Board recognizes that the Veteran has significant service-connected disabilities that clearly impact on his ability to care for himself. The Veteran's wife has described the ways in which she must assist him in performing daily tasks. VA providers have noted the Veteran's continuing fall risk, and that he is able to ambulate without assistance only within the home, and only for very short distances. He has significant mobility limitations due to his MS, and requires a great deal of assistance in performing basic daily tasks. In short, the evidence establishes that the Veteran's service-connected disabilities cause him to be so helpless as to require regular aid an attendance of another person. Accordingly, the Board concludes that the criteria for the award of special monthly compensation benefits based on a need for regular aid and attendance have been met.
ORDER
Entitlement to an increased rating for MS with neurogenic bladder is denied.
Entitlement to an initial evaluation of 70 percent for sensory neuropathy of the left (dominant) upper extremity is granted, subject to the controlling regulations applicable to the payment of monetary benefits.
Entitlement to an initial evaluation of 30 percent for sensory neuropathy of the left lower extremity is granted, subject to the controlling regulations applicable to the payment of monetary benefits.
Entitlement to a compensable evaluation for optic neuritis is denied.
Entitlement to special monthly compensation based on the need for aid and attendance of another person is granted, subject to the controlling regulations applicable to the payment of monetary benefits.
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L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs